Negotiating the Complex Interface between State Immunity and Human Rights: An Analysis of the International Court of Justice Decision in Germany v. Italy

2013 ◽  
Vol 15 (4) ◽  
pp. 415-436
Author(s):  
J. Craig Barker
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Alternative Vision ◽  
United Nations Convention ◽  
Human Rights Norms ◽  
The Relationship

Abstract One of the most controversial areas of contemporary international law is the interface between immunities and human rights. International immunities have been successfully challenged on human rights grounds in certain jurisdictions. However, to date, no international court tribunal has endorsed such challenges. In its judgment in Germany v. Italy the International Court of Justice re-asserted the conservative approach to the relationship between State immunity and human rights, which rejects the claim that State immunity is “trumped” by hierarchically superior human rights norms. This article examines the Court’s reasoning, before turning to consider the alternative vision of the interface between State immunity and human rights presented by Judge Cinçado Trindade. While persuasive, Trindade’s analysis must ultimately be rejected. The overtly positivist and formalistic approach of the Court, which is itself open to criticism, was, nevertheless, necessitated by the failure of States to provide for a human rights exception in the United Nations Convention on the Jurisdictional Immunities of States and Their Property 2004, signifying a strong opinio juris against the further limitation of State immunity at the present time. Nevertheless, the Court carefully sought to limit the effects of its judgment by limiting its focus to the specific questions before it.

Le Peuple, c’est moi! The World Court and Human Rights

1987 ◽  
Vol 81 (1) ◽  
pp. 173-183 ◽  
Author(s):  
Fernando R. Tesón
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Court Of Justice ◽  
Self Defense ◽  
Court Of Justice ◽  
International Court ◽  
Domestic Jurisdiction ◽  
Final Verdict ◽  
Law And Justice ◽  
The Relationship

This essay examines the discussion of human rights and domestic jurisdiction by the International Court of Justice in the Nicaragua case. Independently of the final verdict about the lawfulness of U.S. help to the contras under principles of either self-defense or humanitarian intervention, the Court’s views on the relationship among human rights, domestic jurisdiction and intervention are wrong in law. Furthermore, the philosophical assumptions of the Judgment are profoundly disturbing. For the reasons set forth below, I submit that the Court’s approach embodies a backward view of international law and justice that was totally unnecessary to the resolution of the case.

scholarly journals Remarks by Maria Flores

2018 ◽  
Vol 112 ◽  
pp. 79-82
Author(s):  
Maria Flores
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Global Scale ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
Small Department ◽  
The University

I first became involved with international law while I was at university. After graduating, I decided to teach public international law. As an undergraduate, I particularly enjoyed this branch of study. I was attracted to it because it helped me to understand the problems, challenges, and breakthroughs in the field of international relations on a global scale. Therefore, after facing a competitive entry process, I joined the international law department of the Universidad de la República. It was a small department, but the university had produced some well-known scholars like Eduardo Jiménez de Aréchaga, who became a judge at the International Court of Justice, and Hector Gross Espiell, who served as a judge at the Inter-American Court of Human Rights.

The LOSC as a Package Deal and Its Implications for Determination of Customary International Law

2020 ◽  
Vol 35 (4) ◽  
pp. 704-739
Author(s):  
Xuexia Liao
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Not Given ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
United Nations Convention

Abstract This article revisits the package deal nature of the United Nations Convention on the Law of the Sea (LOSC) and its implications for determining customary international law. A survey of the case law illustrates that the International Court of Justice (ICJ) has not given particular weight to the fact that the LOSC was negotiated and accepted as a package deal. Nevertheless, the ICJ’s declaration that Article 121, paragraph 3 of the LOSC is a customary rule tends to be based on a ‘package deal approach’, which focuses on the textual and logical links between the paragraphs that manifest an ‘indivisible régime’. By exploring the difficulties of determining the customary status of Article 76(2)–(7) concerning the continental shelf beyond 200 nautical miles, which may arise in the pending Nicaragua v. Colombia II case, this article calls for a cautious attitude towards determination of customary rules from the LOSC.

II. INTERNATIONAL COURT OF JUSTICE: QUESTIONS RELATING TO THE OBLIGATION TO EXTRADITE OR PROSECUTE (BELGIUM v SENEGAL) JUDGMENT OF 20 JULY 2012

2013 ◽  
Vol 62 (3) ◽  
pp. 753-769 ◽  
Author(s):  
Mads Andenas ◽  
Thomas Weatherall
Keyword(s):  
Human Rights ◽  
International Law ◽  
Universal Jurisdiction ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Jus Cogens ◽  
Heads Of State ◽  
Peremptory Norms

This case1 marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute (aut dedere aut judicare) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms (jus cogens) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.

II. AVENA AND OTHER MEXICAN NATIONALS {MEXICO v UNITED STATES OF AMERICA), PROVISIONAL MEASURES, ORDER OF 5 FEBRUARY 2003

2004 ◽  
Vol 53 (3) ◽  
pp. 738-746 ◽  
Author(s):  
Sandy Ghandhi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Dispute Settlement ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Human Rights Treaties ◽  
Legal Contexts ◽  
Dispute Settlement Procedure ◽  
Rights Issues

The International Court of Justice is not a human rights court but it does hear human rights cases.1This is hardly remarkable. As Professor Ian Brownlie has pointed out ‘[h]uman rights problems occur in specific legal contexts. The issues may arise… within the framework of a standard-setting convention, or within general international law.’2Because human rights treaties normally have their own dispute settlement procedure, the situations in which the International Court of Justice is more likely to have to grapple with human rights issues lie within the realms of general international law or in non-human rights specific treaty provisions, which may, nevertheless, raise such issues. In addition, some human rights treaties, such as the Convention on the Prevention and Punishment of the Crime of Genocide 1948, contain provisions specifically referring disputes to the International Court of Justice.3Thus, it should come as no surprise that the Court has been involved in a number of cases involving human rights questions.

The End of the Road for the Prince? Sixty Years after the Czechoslovak Confiscation of Liechtenstein Property

2006 ◽  
Vol 19 (2) ◽  
pp. 441-458
Author(s):  
BART DELMARTINO
Keyword(s):  
Human Rights ◽  
International Law ◽  
The Other ◽  
Nazi Germany ◽  
International Court Of Justice ◽  
The Road ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
International Obligations

In 1945 Czechoslovakia confiscated Liechtenstein property as reparation for the damage done by Nazi Germany. Private claims failed before the courts of Czechoslovakia, and international law did not provide Liechtenstein with a means of action against Czechoslovakia. When the property was on loan in Germany, a private case for recovery was declared inadmissible by the German courts, in line with Germany's international obligations. The European Court of Human Rights accepted these decisions. Liechtenstein, on the other hand, considered them to violate its sovereignty. In 2005, the International Court of Justice decided that it lacked temporal jurisdiction to rule on the issue.

scholarly journals The Process of International Law— Making: The Relationship Between the International Court of Justice and the International Law Commission

2015 ◽  
Vol 15 (1) ◽  
pp. 7-57 ◽  
Author(s):  
Marija Đorđeska
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
International Law Commission ◽  
The Relationship ◽  
Law Making ◽  
Law Commission

Abstract Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.

Legal Systems and Variance in the Design of Commitments to the International Court of Justice

2009 ◽  
Vol 26 (2) ◽  
pp. 164-190 ◽  
Author(s):  
Sara McLaughlin Mitchell ◽  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Bilateral Treaties ◽  
The Relationship

This paper explores the relationship between domestic legal systems and the design of commitments to the International Court of Justice (ICJ). Empirical analyses demonstrate that civil law states are more willing to recognize the compulsory and compromissory jurisdiction of the World Court than common law or Islamic law states. Common law states place the highest number of reservations on their optional clause declarations, with the majority of those restrictions relating to specific areas of international law. Civil law states typically embed compromissory clauses in multilateral treaties, while common and Islamic law states prefer recognition of the ICJ's jurisdiction through bilateral treaties.

The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case

1994 ◽  
Vol 88 (4) ◽  
pp. 643-677 ◽  
Author(s):  
Vera Gowlland-Debbas
Keyword(s):  
United Nations ◽  
International Law ◽  
Security Council ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The United Nations ◽  
United Nations Charter ◽  
The Relationship ◽  
The Way

The relationship between the International Court of Justice and the Security Council may be approached from the perspective of the United Nations Charter and the way it delimits competences between two principal UN organs and regulates the exercise of their concurrent powers. The Court, however, has a dual, ambivalent role. It is not only the principal judicial organ of the United Nations under Article 92 of the Charter; it is also an autonomous adjudicative body with the function, under Article 38 of its Statute, of applying international law to such disputes between states as are brought before it. Viewed in the light of Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, the relationship between the judicial and political organs raises some fundamental questions of general international law that go beyond UN constitutional issues.

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